Sidhu (Migration)

[2019] AATA 4928

Sidhu (Migration) [2019] AATA 4928 (9 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amritpal Singh Sidhu

CASE NUMBER:  1818173

HOME AFFAIRS REFERENCE(S):           BCC2018/1036768

MEMBER:Stephen Witts

DATE:9 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 09 July 2019 at 11:15am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – not genuine student – did not maintain enrolment in registered course for eight months – multiple course enrolments – training providers did not advise of enrolment cancellations – non-payment of fees – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

CASES
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 June 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(fa)(i) on the basis that the applicant is not, or is likely not to be, a genuine student. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 9 July 2019 to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was represented in relation to the review.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(fa)(i) if satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(fa) - not a genuine student

8. A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

9. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

10. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

11. According to the delegate’s decision record provided to the Tribunal by the applicant, the applicant first arrived in Australia on 19 April 2015 as the holder of a Student (subclass 573) visa granted to him on 10 April 2015 valid until 30 August 2018 on the basis of undertaking a number of courses including a Gen English course, a Certificate IV in Accounting, a Diploma of Accounting, and a Bachelor of Business (Accounting). According to the delegate’s decision record the applicant undertook study in Gen English and in his Certificate IV in Accounting in 2015. According to the delegate’s decision record the applicant never commenced his Diploma of Accounting or his Bachelor of Business (Accounting) courses and that these two enrolments were cancelled. The delegate further contended that the applicant then studied a Certificate III in Commercial Cookery in 2016 and 2017. The applicant then commenced a Certificate IV in Commercial Cookery which was cancelled due to non-payment of fees. The delegate further contended that the applicant enrolled in a Diploma of Leadership and Management and a Bachelor of Business which at that time, that is the time of the decision record of 14 June 2018, was due to commence on 27 May 2019 and complete on 16 May 2021.

12. According to the delegate’s decision record, based on this information the delegate has contended that the applicant did not maintain enrolment in a registered course of study for a period of at least eight months between August 2017 and April 2018 and further did not undertake study in a registered course for eight months between August 2017 and April 2018.

13. The delegate has contended that therefore the applicant’s higher education sector visa was liable for cancellation under section 116(1)(fa)(i).

14. The applicant was invited by the delegate to respond to a notice of a consideration to consider cancellation on 31 May 2018. On 4 June 2018, 6 June 2018, and 8 June 2018 the applicant sent emails in response to the delegate’s NOICC.

15. The Tribunal has considered the submissions provided by the applicant in this matter.

16. In these submissions the applicant has contended that he had cancelled an enrolment as at that time in 2015 he was working in an Italian restaurant and had developed an interest in hospitality. He also has asserted that he had had problems with his training provider who cancelled one of his enrolments due to receipt of payment issues and this training provider had subsequently closed. The applicant also stated that the department’s records were correct and that he accepted the claims made by the Department but that he had had problems with training providers not advising him that his enrolments had been cancelled. He further contended that he did not wish to proceed with his business and accounting enrolments because he was now passionate to study hospitality and would like to build a future in hospitality.

17. The Tribunal had a discussion with the applicant in regard to the circumstances of his cancelled enrolments during this period of time. The applicant stated that he came here from India in 2015 because Australia was a good place to study and that he could make himself a better future than back at home in India. He stated that he allowed his business enrolments to lapse as he decided to change his course of study to hospitality and that he didn’t know that he had to maintain a higher level enrolment of study as a condition of his visa. He stated that he worked at a restaurant for two years and completed his Certificate III and IV in Commercial Cookery but he stated that his education provider, South Pacific College, closed down at some point in this process and he was unable to achieve his Certificate IV qualification as the education provider maintained that he still owed at least $1000 AUD on that enrolment. He stated that he had trouble reaching the college and that at some point he got a new lawyer and a new COE in a bachelor level business course which he couldn’t continue because his visa was cancelled.

18. The Tribunal has considered the statements made by the applicant but notes that no specific evidence has been provided by the applicant which, in the Tribunal’s opinion, substantiates these statements. The Tribunal acknowledges that for one enrolment at that period of time the applicant may have had a problem with an education institution closing which may have affected that particular enrolment. However, it is also noted by the Tribunal that it would appear that the applicant may not have paid the necessary fees to complete that enrolment in any case. The Tribunal finds that during that period of time since the applicant arrived in 2015 there have been a pattern of non-payment of fees and other issues leading to the applicant not maintaining enrolments in registered courses which led to the delegate cancelling the applicant’s visa.

19. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

20. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    ·the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

21. When asked by the Tribunal to outline the applicant’s need to remain in Australia on student visas the applicant stated that his future plans would be upset and that his experience working in the restaurant business would be of little use if he could not continue his study here in Australia. He also stated that the value of the work he is undertaking in the restaurant business is greater here than any he could get back in his home country. He then stated that he wanted to complete his studies and make a future in the restaurant business.

22. The Tribunal accepts that the applicant wants to stay here in Australia working in a restaurant business and may even want to continue hospitality studies here but finds that the applicant has not demonstrated a compelling need to remain in Australia on student visas. The applicant could return home to his home country and be with his parents and his sister in India and resume a family life there working in a hospitality or restaurant business and also doing some study in cookery if that would assist him in making a career for himself in this field back in his home country.

    ·the extent of compliance with visa conditions

23. The applicant was granted a Higher Education TU573 student visa in order to study in Australia. As such his intention must be to study, maintain enrolment, attendance and course progress in the higher education category.

24. The Tribunal finds that the applicant is significantly in breach of his student visa conditions and as such the Tribunal gives some weight to this in cancelling his visa.

    ·degree of hardship that may be caused (financial, psychological, emotional or other hardship)

25. When asked by the Tribunal to demonstrate a degree of hardship that may be caused by not being able to remain here on student visas the applicant stated that his family had an expectation that he should come to Australia to secure his future and that his parents wanted him to come to Australia. He also stated that he needed to work to pay off his credit card fees. The Tribunal is concerned by this evidence as the applicant could at any time return to his home country, resume his life there with his family, and work in a restaurant or hospitality business with the intention of paying off any money he may owe on his credit cards. The Tribunal finds that the applicant has not demonstrated a degree of hardship that would establish grounds for his visa not to be cancelled.

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

26. The Tribunal finds that the applicant did not provide any evidence that that there were circumstances that were beyond his control. It is noted by the Tribunal that the applicant asserted that one of his enrolments was cancelled because an education provider closed down but it is also noted by the Tribunal that this education provider asserted that the applicant had not paid his fees.

27. The Tribunal therefore finds that there are no circumstances in which the ground for cancellation arose beyond the visa holder’s control.

    ·past and present behaviour of the visa holder towards the department

28. There is no evidence that the applicant made an adequate effort to contact the department throughout his period of time here prior to his visa cancellation and the Tribunal lends some weight to this in consideration regarding the merits of the applicant’s visa cancellation.

    ·whether there would be consequential cancellations under s.140

29. There are no such considerations in this case.

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

30. The Tribunal is mindful the cancellation could lead to the applicant becoming an unlawful noncitizen who could be detained and removed from Australia pursuant to s.189. The Tribunal is mindful that the visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion.

31. However, the Tribunal is not satisfied that there are consequences of the cancellation which mean that the visa should not be cancelled.

    ·whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

32. There are no such considerations in this case.

    ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

33. There are no such considerations in this case.

    ·any other relevant matters

34. The Tribunal has given consideration to the applicant’s evidence in regard to any reasons why the applicant’s student visa should not have been cancelled. In particular the Tribunal has considered the applicant’s evidence regarding the difficulties associated with maintaining his enrolments here. However, the Tribunal does not find that the applicant could demonstrate a case where any circumstances arose that were beyond his control. The Tribunal also finds that the applicant could not present a set of circumstances that demonstrate a compelling need for the applicant to remain here or that he would actually suffer any hardship from returning to his family life back in his home country.

35. The Tribunal appreciates an education from Australia may enhance the applicant’s career, however if he does not achieve this, it would not prevent him from gaining employment back in his home country in India, specifically in the restaurant in hospitality business, and the applicant did not provide any evidence to indicate a detrimental effect if the visa was cancelled. The population of India, and its economy, is significant and there are many people in full-time professional employment without a specific education from Australia.

36. The Tribunal has considered the applicant’s statements and evidence given at the hearing however the breach is significant. The Tribunal has considered all factors listed above both individually and cumulatively in the context of the breach.

37. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

38. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Stephen Witts
    Member

    
    

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.